- (1.) This appeal has been directed as against the judgement and order of acquittal dated 20-07-2012 as passed by the the then Judicial Magistrate, 2nd Court, Bishnupur, Bankura, in Complaint Case No. 39- C of 2008 under Section 138 of the Negotiable Instruments Act (hereinafter called as N.I. Act.)
(2.) The case of the parties in nutshell for appreciation of this appeal can be stated in brief thus:- as per the appellant he and the respondent are two cousin brothers and the respondent took a friendly loan of Rs. 19,000/- from the appellant on 01-12-2007 without any interest with an undertaking that the same will be re-paid within three months. On 26-03-2008, the accused issued a cheque bearing No. 0024832 dated 26-03-2008 drawn on Central Bank of India, Durgapur Branch, for Rs.19,000/-. Admittedly, the present respondent was maintaining one Account No. 1417 in that Branch. The present appellant presented the cheque to the SBI, Sonamukhi Branch, for encashing it. The appellant was maintaining one Account No. 11413949856 in that branch. The said cheque was unfortunately dishonoured by the banker of the accused on the ground "exceeds arrangements". In other words, the cheque was dishonoured as the fund was insufficient as per the bank memo dated 04-04-2008. Thereafter, a notice was issued to the present respondent by Registered Post with A/D and the said A/D card and the envelop returned with the endorsement "intimation served" (on 19-04-2008) and further "not claimed and returned to sender" as per endorsement of the postal peon dated 25-04-2008. The envelope was marked as Ext. 3/2. The original notice was marked as Ext. 3/1. Postal receipt was marked as Ext. 3. The return Memos of the State Bank of India were marked as Exts. 2 and 2/1 and the cheque was marked as Ext.1.
(3.) The accused appellant did not make any payment and as such, the complaint was filed before the Additional Chief Judicial Magistrate, Bishnupur and Complaint Case No. 39-C of 2008 was registered. The case was contested by the present respondent. He was examined under Section 251 of Cr.P.C. in respect of the offence under Section 138 of the N.I Act to which the Respondent/Accused pleaded not guilty and claimed to be tried. On behalf of the present appellant, two P.Ws were examined namely, the appellant himself (P.W.1) and one Bimalendu Sarkar, a bank employee, as P.W.2. I have already said regarding the documentary evidence relied upon by the appellant. 3. The accused-respondent was examined under Section 313 of Cr.P.C. He replied that he had no relationship with the complainant since 2001 and as such, there was no question either of receipt of any money from him or issuance of any cheque. He also denied that he refused to accept the notice. This respondent got him examined as D.W.1 in support of his claim. The learned Trial Court after hearing of argument and scrutinizing the oral and documentary evidence on record was pleased to acquit the present respondent on the ground that there was no existing liability. The Trial Court was impressed with the evidence of D.W.1 that somehow the complainant/appellant came across the blank signed cheque and filled it up and presented it for encashment. The learned Trial Court also relied upon the decision of the Hon'ble Apex Court as ( K. J. Bhatt vs- D.G. Hegde, 2008 2 SCC(Cri) 166 ) wherein the Apex Court observed that the existence of legally recoverable debt is not the subject matter of presumption under Section 139 of the N.I. Act which merely a raises a presumption in favour of a holder of the cheque that the same was issued for discharge of any debt or other liability. It was held by the Trial Court that the presumption was duly rebutted by the respondent. The Trial Court also relied upon the decision of the Hon'ble Apex Court as reported in (2006) 132 Company Cases 450 wherein it was observed that the accused had no burden to disprove the case of the complainant and to rebut the presumption, the accused can rely not only on the defence evidence but he can also rely on the broad improbabilities in the case of the prosecution etc.;